cious appointments. However, as these appointments by the legislature tend to increase a mixture of power, to lessen the advantages of impeachments and responsibility, I would by no means contend for them any further than it may be necessary for reducing the power of the executive within the bounds of safety.

THE FEDERAL FARMER


Antifederalist Nos. 78-79
THE POWER OF THE JUDICIARY (PART I)

Alexander Hamilton's expositions on the proposed judicial system (particularly Federalist No. 78) have long been regarded as the classic analysis of that unique institution. The essays of "BRUTUS" stand as a direct rebuttal to Hamilton's essays, and deserve equal renown. Judicial review with all of its ramifications, as well as the inevitability of a "loose" construction of the Constitution, were predicted by "Brutus" with exceptional clairvoyance.

The first half of the following paper is from the first part of the fifteenth essay by "Brutus," in The New-York Journal, March 20, 1788; the second half is from the first part of his sixteenth essay in the same newspaper, April 10, 1788.

The supreme court under this constitution would be exalted above all other power in the government, and subject to no control. The business of this paper will be to illustrate this, and to show the danger that will result from it. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. Certain it is, that in England, and in the several states, where we have been taught to believe the courts of law are put upon the most prudent establishment, they are on a very different footing.

The judges in England, it is true, hold their offices during their good behavior, but then their determinations are subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union. I believe they in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution. They consider themselves bound to decide according to the existing laws of the land, and never undertake to control them by adjudging that they are inconsistent with the constitution--much less are they vested with the power of giv[ing an] equitable construction to the constitution.

The judges in England are under the control of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. The framers of this

-222-

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